FILED
NOT FOR PUBLICATION SEP 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30233
Plaintiff - Appellee, D.C. No. 2:10-cr-02104-FVS-1
v.
MEMORANDUM *
MICHAEL JOSEPH NAVARRO, AKA
Michael Joseph Allred,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted July 13, 2012
Seattle, Washington
Before: SCHROEDER, KLEINFELD, and M. SMITH, Circuit Judges.
Appellant-Defendant Michael Navarro (“Navarro”) appeals his jury
conviction of being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). He contends that he was prejudiced by two evidentiary errors at trial
and that the district court should have granted his motion for judgment of acquittal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Navarro first argues that pursuant to the Federal Rules of Evidence, Rules
403 and 404(b), the district court should have excluded testimony about why law
enforcement stopped him on the street, because this was inadmissible “other act”
evidence. Such evidence, however, may be admitted without regard to Rule 404(b)
so long as it is necessary “to permit the prosecutor to offer a coherent and
comprehensible story regarding the commission of the crime.” United States v.
Vizcarra-Martinez, 66 F.3d 1006, 1012–13 (9th Cir. 1995). Here, the challenged
testimony was inextricably intertwined with Navarro’s arrest and provided the
context in which the charged crime occurred. See United States v. Collins, 90 F.3d
1420, 1428–29 (9th Cir. 1996). Thus, the district court did not err in admitting this
testimony. See United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir. 2004).
Navarro’s second argument is that the district court erred in admitting
evidence about his gang membership. The Government responds that defense
counsel opened the door to this evidence. The defense and not the Government
introduced evidence about gangs, suggesting that someone in the gang and not
Navarro had the gun. The district court allowed the evidence of Navarro’s gang
membership. While Navarro contends he did not open the door for evidence of his
own gang membership, we review for abuse of discretion and there is no clear
abuse. And even assuming that defense counsel did not open the door, and the
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district court abused its discretion in admitting the evidence, the admission of this
evidence was harmless. The Government presented eye-witness testimony about
Navarro’s flight from law enforcement, which led Navarro past the location where
the gun was found; law enforcement officers testified that no other individuals
were seen in the area during, or after, the pursuit; red fibers taken from the gun
were chemically and physically similar to a thread taken from the pocket of
Navarro’s red sweat pants; a thermal imaging device revealed that the gun had
been handled recently; and Navarro’s DNA profile could not be excluded from the
mixed DNA sample taken from the gun.
Because there is sufficient evidence in the record to sustain the conviction,
the district court did not err in denying the motion for judgment of acquittal. See
United States v. Nevils, 598 F.3d 1158, 1164–65, 1168–69 (9th Cir. 2010) (en
banc); see also United States v. Yoshida, 303 F.3d 1145, 1151 (9th Cir. 2002).
AFFIRMED.
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